How EU membership has transformed the constitution

thumbnail_Prof Patrick Birkinshaw MSP_1891 copythumbnail_Varney_M MSP_3893

A timely new book examines the implications and consequences of a British exit from the European Union. In this post Patrick J. Birkinshaw and Mike Varney summarise the first chapter, which discusses how our EU experience has changed our notion of sovereignty. They argue that, even if the UK leaves the EU, the effects of decades of European influence would not be reversed and there would be no return to a pre-1972 prototype.

Will Brexit restore sovereignty? This is the question at the heart of our chapter that introduces the recently published Britain Alone! The Implications and Consequences of United Kingdom Exit from the EU. Voters will no doubt be motivated by the widest variety of factors in how they vote. Sober judgement and mature reflection have not been assisted by an absence of informed debate on the major principles and values at issue. The Prime Minister’s frantic negotiations leading to the Best of Both Worlds paper in February 2016, as required under the European Union Referendum Act 2015, which sets out the advantages of remaining in the EU with a ‘special status’ ensuring that the UK will not be a part of a ‘European super-state’, probably represents the best outcome for a member state that has long been semi-detached to the European project. Whether it will sway many voters is another matter.

Restoration of sovereignty may well feature in a large number of voters’ thinking – it is a commonplace among Brexit supporting politicians: not being bossed about, controlling our own laws and borders, controlling the public purse, not being a part of an alienating globalisation process. But it seemed to us that sovereignty as a constitutional legal concept needed to be unpacked. Our focus is on the sovereignty of the Crown in Parliament as a legislator.

41XMQXgoN8L._SX350_BO1,204,203,200_What we develop in our chapter is the manner in which we believe our experience with the EU, and also with the European Convention on Human Rights, has changed the notion of sovereignty that existed in 1972 when the European Communities Act was enacted. Parliament was the sovereign legislator. Its legislation was omnipotent and inviolable and made through parliament. Judges, as Jacob Rees-Mogg observed, were subject to ‘democratic control’.  No judge could act against the clear words of a statute. While judges have the last say on the meaning of a law, any judicial decision could be reversed by statute. How often we have heard these sentiments expressed in the last few years by supporters of Brexit.

The change in sovereignty came about through processes that are well known. First of all, parliament in s 3(1) of the 1972 legislation provided that judgments of the European Court of Justice (ECJ) on EU law were to be treated as binding statements of EU law. UK judges would have to follow them either directly or after a reference to the ECJ. Secondly, the ECJ had previously determined that EU law was sovereign (now takes primacy) over conflicting national law, even constitutional law, and that EU law can be directly effective creating rights for individuals that are justiciable in national courts from treaties and directives.

In Factortame in 1990, after initial reluctance, the Appellate Committee of the House of Lords accepted that UK courts had no alternative but to disapply provisions of a domestic statute that breached EU law. The same court was subsequently to do this without a reference to the ECJ. This could all be explained by expressing the view that, like it or not, this is what parliament had agreed to in the 1972 legislation. It may have taken a while for the penny to have dropped but the UK through parliament was volens.

However, a far deeper excursion into the juristic basis of what parliament had actually achieved was carried out in Metric Martyrs. The analysis is again familiar but the case proceeded beyond accepting that EU laws could displace domestic laws. It required a deeper understanding of the basis of this displacement. Parliament could agree to an EU law overriding a national law. But parliament could not agree to something it lacked power to do, i.e. to entrench EU law. Parliament could not do this because the common law would not allow parliament to do this. And the mouth piece of the common law is of course the judges. Lord Justice Laws placed limits not on what a future parliament may do; he placed limits on what a present or past parliament may do. The limits were implicit in the common law. Although we are critical of authors in the sovereignty debate and their imprecision in what they mean by the common law, including Laws himself, Laws nonetheless subjected parliament to a common law matrix limiting parliament’s powers. A question had been put to parliament’s sovereignty. And for good measure Laws introduced a new legal concept – a ‘constitutional statute’.

We spell out in the chapter how subsequently the theme of a limited parliament and the implications of this have been addressed in judgments and extra judicial contributions by senior judges. Jackson (2005) witnessed statements that the European dimension had placed limits on parliamentary sovereignty and that the ‘rule of law’ was now the ultimate controlling factor. Dicey’s classic doctrine was now out of place. AXA Insurance (2011) concerned a devolved Parliament’s powers to legislate and the limits therein based on abuse of the rule of law and fundamental rights. And Lord Hope has taken the message of AXA to apply to Parliamentary legislation which threatened the survival of the rule of law itself through removal of judicial protection. To truncate matters, we argue that whereas judges will not assume, and would not want to assume, the role of alternative legislators to parliament, they may refuse to enforce a statutory provision that offends the rule of law. The time and the place will provide the detail and the proof. Readers could start by looking at Moohan [2014] UKSC 67 at para 35 by Lord Hodge and Shindler [2016] EWCA Civ 469 paras 47-50 and most recently Lord Neuberger for a unanimous Supreme Court in R (Public Law Project) v The Lord Chancellor [2016] UKSC 39 at para 20.

The examination of the basis and limits of parliament’s sovereignty is not the only consequence of judicial interpretation of the pecking order between EU and UK laws. Having explored the implications of membership of the EU and limits on what parliament may do, the judges have turned their attention on what limits may be placed on EU law, in particular the ECJ. In HS2 (2014) and Pham (2015) the UK Supreme Court, itself a creature of the implications of the ECHR, expressed limits on the ability of EU law and the ECJ to override fundamental principles of the UK constitution. In HS2 the fundamental principle was respecting article 9 of the Bill of Rights and EU law could not require UK judges to investigate processes internal to Parliament. This was a part of our constitutional settlement and in a system not expressing a full separation of powers nonetheless represented an important aspect of the UK’s approach to the separation of powers. Echoing Laws, whose dicta were approved, there may be ‘fundamental principles’ of the constitution which parliament in 1972 neither contemplated nor authorised the abrogation. Such principles are a matter for UK courts and not the ECJ. This of course runs counter to ECJ jurisprudence. The German federal constitutional court has promoted such a doctrine. This is without prejudice to the courts not enforcing what parliament enacts as outlined above.

On a constitutional question of national citizenship Pham, through Lord Mance, took the opportunity to develop HS2 so that ‘a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements including under the 1972 Act what jurisdictional limits exist under the European Treaties and upon the competence conferred on the European institutions including the Court of Justice’ (para 90).

What seems to us to have happened since our accession to the EEC as it then was in 1973 is that the common law, meaning here judicial interpretation, has questioned the nature of parliamentary sovereignty and then through that has questioned the nature of European sovereignty. Europe has been the catalyst that has transformed our constitution from a political one to one where constitutional fundamentals have become increasingly justiciable. Judges have become constitutional spokesmen and women and not apologists for a limited legality – for that is what parliamentary sovereignty ultimately entails. Judges have a role to play in defining the limits of parliament’s sovereignty (Jackson, para 107). The European influence is also manifest in the promotion of a common law (case law) basis for human rights development, especially under the influence of the ECHR after its implementation through the Human Rights Act. It is additionally richly illustrated through the unparalleled development of domestic principles of judicial review since 1972. The seeds were long in the common law. Fertilisation was through European influence. Even if the UK leaves the EU and replaces the HRA with a ‘British’ bill of rights we believe that the changes we have witnessed and the manner in which sovereignty has been affected will not revert to a 1972 prototype. We conclude our chapter:

‘In short our European experience has made us think differently about the constitution and legality. This is what the Europeans have given us. They have helped bring out the catholicity of the common law. Leaving the European Union and repealing the Human Rights Act will not remove this influence, we believe.’

We add that Brexit would leave us alone in a world that has become far more networked, joined up and subject to global corporate and financial forces. Brexit would run the risk of ‘sovereignty’ existing in isolated, global irrelevance.

Britain Alone! The Implications and Consequences of United Kingdom Exit from the EU, edited by Patrick J. Birkinshaw and Andrea Biondi, was published by Wolters Kluwer in February 2016. Please click here to order online.

About the authors

Patrick J. Birkinshaw is Professor of Public Law and Director of the Institute of European Public Law at the University of Hull.

Dr Mike Varney is Senior Lecturer in Law and Deputy Director of the Institute of European Public Law at the University of Hull.

2 thoughts on “How EU membership has transformed the constitution

  1. One line says it all: ‘They argue that, even if the UK leaves the EU, the effects of decades of European influence would not be reversed and there would be no return to a pre-1972 prototype.’

    Misses the point completely.

  2. The authors’ most topical words are their last : ‘ We add that Brexit would leave us alone in a world that has become far more networked, joined up and subject to global corporate and financial forces. Brexit would run the risk of ‘sovereignty’ exisiting in isolated, global irrelevance.’ Their summary of their work does not explain this conclusion. Might they expand their summary with that summary?

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